IN THE CASE OF:	

		BOARD DATE:	23 July 2009    

		DOCKET NUMBER:  AR20090004218 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge.   

2.  The applicant states, in effect, he believes his discharge was unjust because it was based on a positive drug test from the Army and he provided proof of a negative drug test he took with a civilian doctor that was not taken into consideration.

3.  The applicant provides no additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he enlisted in the Regular Army (RA) and entered active duty on 6 October 1975.  He was trained in and awarded military occupational specialty (MOS) 71L (Administrative Specialist).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in item 18 (Appointments and Reductions), that he was promoted to specialist five (SP5)/E-5 on 1 November 1982 and subsequently laterally appointed to sergeant (SGT)/E-5 effective 1 October 1985, and that this was the highest rank he attained while serving on active duty.  

4.  Item 9 (Awards, Decorations & Campaigns) of the applicant's DA Form 2-1 shows that during his active duty tenure he earned the National Defense Service Medal (NDSM), Army Commendation Medal (ARCOM), Army Achievement Medal (AAM), Army Service Ribbon (ASR), Overseas Service Ribbon (OSR) 4th Award, Army Good Conduct Medal (AGCM) 5th Award, Drill Sergeant Identification Badge, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no combat service acts of valor.  

5.  On 26 January 1993, the applicant tested positive for THC (marijuana) on an Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) urinalysis field testing program.

6.  On 25 February 1993, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana between 11 and 26 January 1993.  His punishment for this offense was a reduction to SPC, forfeiture of $250.00 per month for two months (suspended), and 30 days of extra duty.  

7.  On 25 February 1993, the applicant was notified by his unit commander that action was being initiated to separate him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The unit commander cited his reason for taking the action as the applicant's wrongful use of marijuana.  

8.  On 11 March 1993, the unit commander submitted the recommendation for the applicant's separation with a statement indicating the applicant had failed to submit his acknowledgment of the separation action with his election of rights and/or to request an extension of the 7 day suspense.  

9.  On 17 March 1993, the applicant's first sergeant completed a statement confirming that on 25 February 1993 the unit commander fully counseled the applicant on his rights in connection with the separation action and offered to make the applicant an appointment with legal counsel, but the applicant refused and indicated he would rather do it himself.  

10.  The first sergeant further confirmed that the applicant was given 7 days, through 8 March 1993, to consult with legal counsel and to return his separation action acknowledgment with election of rights.  The unit commander also informed the applicant he could receive an extension of that suspense for good cause.  The first sergeant confirms the unit commander further informed the applicant that if he failed to respond within 7 days, this would constitute a waiver of his rights.  The first sergeant confirmed that as of the date he prepared the statement, the applicant still had not responded by submitting his election of rights and/or requesting an extension for cause.  

11.  On 25 March 1993, the separation authority approved the applicant's separation under the provisions of paragraph 14-12c, Army Regulation 635-200, for misconduct - commission of a serious offense, and directed the applicant receive an UOTHC discharge.  On 8 April 1993, the applicant was discharged accordingly.

12.  There is no indication in the record that the applicant requested an upgrade of his discharge from the Army Discharge Review Board within that board's
15-year statute of limitations.  

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 of the regulation deals with separation for various types of misconduct, which includes drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal expiration of term of service.  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  Those in pay grades below E-5 may also be processed after a first drug offense and must be processed for separation after a second offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200, dated 6 June 2005, provides the current policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  

15.  Paragraph 14-3 of the same regulation contains guidance on characterization of service for members separated under chapter 14.  It states, in pertinent part, that an UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge, under honorable conditions if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An honorable discharge may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated.  

16.  Paragraph 14-12c of the enlisted separations regulation provides for the separation of members for misconduct based on the commission of a serious offense which includes the abuse of illegal drugs.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge was unjust because he submitted a negative drug test from a civilian doctor that was not taken into consideration was carefully considered.  However, there is insufficient evidence to support this claim.

2.  There is no evidence of record to corroborate the applicant's claim that during the separation process he submitted evidence that was not considered.  To the contrary, the record shows he failed to consult with legal counsel or to respond to the separation action notification within the time allowed.  

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  It further shows that the separation authority directed that the applicant receive an UOTHC discharge, which was appropriate based on the regulatory guidance.  

4.  By using illegal drugs while serving as a noncommissioned officer (NCO), the applicant knowingly risked his military career and abused the trust and confidence placed in him as an NCO and leader.  Therefore, his discharge accurately reflects his misconduct and absent any evidence of an error or injustice in the separation process, it would not be appropriate to grant the requested relief in this case. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____X___  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________X____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090004218



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004218



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1